On April 17, 2019, the United States Environmental Protection Agency (EPA) issued a final “significant new use rule” (SNUR) prohibiting over one dozen uses of asbestos from returning to the marketplace without EPA review and approval.
The uses of asbestos subject to the SNUR are:
- adhesives, sealants, and roof and non-roof coatings;
- arc chutes;
- beater-add gaskets;
- cement products;
- extruded sealant tape and other tape;
- filler for acetone cylinders;
- friction materials (with certain exceptions);
- high-grade electrical paper;
- missile liner;
- pipeline wrap;
- reinforced plastics;
- roofing felt;
- separators in fuel cells and batteries;
- vinyl-asbestos floor tiles;
- woven products;
- any other building material; and
- any other use of asbestos that is neither ongoing nor already prohibited under the Toxic Substances Control Act (TSCA).
These uses were identified by EPA as “discontinued,” meaning that they are no longer in the marketplace. But the SNUR effectively bans those uses from returning to the marketplace by requiring that EPA be given the opportunity to “evaluate each intended use . . . for potential risks to the health and the environment and take any necessary regulatory action, which may include a prohibition.” Any company seeking to manufacture or import any product falling into one of the categories subject to the SNUR must notify EPA at least 90 days in advance in order to allow EPA to evaluate the proposed use, and no manufacture or import may occur unless and until EPA has made an official determination.
EPA promulgated the SNUR under the authority of TSCA, which underwent a major overhaul in 2016 and has been used by EPA in recent years to issue new chemical regulations, as well as to strengthen and expand existing regulations. In December 2016, EPA selected asbestos as one of the first ten “high priority” substances to undergo risk evaluations under TSCA. EPA then outlined its proposed approach to its asbestos risk evaluation in a “problem formulation” document released in June 2018. While EPA has not yet published its draft risk evaluation for asbestos, the SNUR provides important insight into how EPA’s approach has changed since it published its problem formulation document nearly one year ago.
Importantly, EPA’s SNUR indicates that only the following “ongoing” uses of asbestos are currently subject to EPA’s risk evaluation:
- imported raw bulk chrysotile asbestos for the fabrication of diaphragms (used in chlorine and sodium hydroxide production);
- sheet gaskets (used in chemical production, e.g. titanium dioxide production);
- brake blocks used in oil drilling equipment;
- aftermarket automotive brakes/linings and other vehicle friction products; and
- other gaskets.
Although cement products, woven products, and packings were originally included in EPA’s problem formulation for asbestos, EPA notes in the SNUR that it has since determined those uses are no longer ongoing and therefore will not be included in EPA’s forthcoming risk evaluation. This shift in EPA’s approach raises significant questions about whether and to what extent other changes have been made since EPA released its problem formulation document, meaning that companies should be on high alert when EPA releases its draft risk evaluation, which could lead to further regulations. The draft asbestos risk evaluation is expected sometime in 2019.
Read the SNUR here.